Skip to content


Kalipada Sirkar Vs. Harimohan Dalal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in35Ind.Cas.856
AppellantKalipada Sirkar
RespondentHarimohan Dalal
Cases ReferredChuck v. Cremer
Excerpt:
civil procedure code (act v of 1908), section 47, order xxxii, rule 15 - lunatic, decree against--not properly represented in suit--execution--objections to validity of decree, sustainability of--enforceability or otherwise of decree, whether a question wider section 47, civil procedure code. - .....judgment. the question for determination is, whether validity of the decree can be questioned in execution proceedings on the ground that as the lunatic plaintiff was not properly represented by a competent next friend in the suit, no operative decree for costs could have been made against him.4. it is indisputable that the court executing a decree must take the decree as it stands and has no power to go behind the decree or to entertain an objection to the legality or correctness of the decree. this principle was recognized by the judicial committee in the cases of sri rajah papamma rao bahadur v. sri vira pratapa h.v. ramchandra razu 23 i.a. 32 : 19 m. 249 : 6 m.l.j. 53 and grish chunder lahiri v. shoshi sikhareswar roy 27 i.a. 110 : 27 c. 951 : 4 c.w.n. 631 and has been applied in a.....
Judgment:

1. This appeal is directed against an order for execution of a decree for costs. The decree was made on the 24th September 1913 and is in these terms: it is ordered and decreed that this suit be dismissed, and the costs of the suit Rs. 400-8-9 be paid by the plaintiff to the above-named defendant with interest at 6 per cent, per annum from this day till the date of realisation.' In the cause title, set out at the commencement of the decree, the plaintiff is described as follows:--'Lunatic Brojogopal Sarkar, represented by certificated guardian under Act XXXV of 1858, Srimati Mohamaya Dasi, wife of the said Brojogopal Sarkar.' The decree consequently entitles the successful defendant to recover the costs allowed in his favour from the lunatic Brojogopal Sarkar. On the 2nd February 1915, the defendant decree-holder applied for execution in accordance with Order XXI, Rule 11(2). Execution was sought against Kalipada Sarkar, the infant son of Brojogopal Sarkar, who had died in the interval. The Court, accordingly, directed notices to issue under Order XXI, Rule 22(1), Clauses (a) and (b). The usual notice was also directed to issue upon Mohamaya Dasi, who had been proposed by the decree-holder for appointment as guardian ad litem of the infant. On the 17th March 1915, the Court with the consent of the proposed guardian appointed her guardian ad litem, of the infant. On the 21st April 1915, the Court issued a fresh notice under Order XXI, Rule 22(1)(b), which was served in due course. On the 10th July 1915, the lady filed a petition of objections. She stated that she had lately attained majority and was not a fit and proper person to act as guardian ad litem of her infant son. On the writ, she urged that when the decree for costs was made in the original suit, she was herself a minor, not competent to act as next friend of the lunatic, and that the decree was consequently illegal and ultra lirqs, incapable of execution against the estate of her husband in the hands of his minor son. The Court overruled these objections and directed execution to proceed against the assets of Brojogopal Sarkar, the deceased judgment-debtor, in the hands of his minor son.' The propriety of this order is the subject of controversy in the present appeal, preferred on behalf of the infant by his mother.

2. The first objection taken in the Court below is entirely groundless. The lady consented to act as guardian ad litem; there is no reason why she should be discharged; there is no conflict of interest between her and her infant son in this matter. Indeed this objection, though mentioned, has not been seriously pressed in this Court.

3. The second objection taken in the Court below raises a question of some nicety. Th0 facts, essential for the full appreciation of the arguments addressed to us, may be briefly stated. The original suit was instituted on behalf of the lunatic by his wife, who had been appointed manager of his property when he was adjudged a lunatic on the 5th August 1911 under Act XXXV of 1858. The defendant pleaded that the suit was not maintainable, inasmuch as the manager was herself a minor and incompetent under the law to act as next friend of the lunatic. The Subordinate Judge took evidence upon this preliminary question, and came to the conclusion that Mohamaya Dasi was a minor, not only when she got herself appointed manager of the estate of her husband under Act XXXV of 1858, but also at the date of the institution of the suit, and had not attained majority even at the time of the trial. The Court held accordingly that she could not proceed with the suit on behalf of her husband and dismissed it with costs. The decree set out above was drawn up on the basis of this judgment. The question for determination is, whether validity of the decree can be questioned in execution proceedings on the ground that as the lunatic plaintiff was not properly represented by a competent next friend in the suit, no operative decree for costs could have been made against him.

4. It is indisputable that the Court executing a decree must take the decree as it stands and has no power to go behind the decree or to entertain an objection to the legality or correctness of the decree. This principle was recognized by the Judicial Committee in the cases of Sri Rajah Papamma Rao Bahadur v. Sri Vira Pratapa H.V. Ramchandra Razu 23 I.A. 32 : 19 M. 249 : 6 M.L.J. 53 and Grish Chunder Lahiri v. Shoshi Sikhareswar Roy 27 I.A. 110 : 27 C. 951 : 4 C.W.N. 631 and has been applied in a long series of decisions Hassan Ali v. Gauzi Ali Mir 31 C. 179, Rashbihari Singh v. Thakur Joyananda Singh 4 C.L.J. 475; Shib Lakshan Bhakat v. Srimati Tarangini Dasi 8 C.L.J. 20; Thakur Madan Mohan Nath Sahi Deo v. Bhikhar Shahu 15 Ind. Cas. 719 : 16 C.L.J. 517; Ram Nath Singh v. Basanta Narain Singh ; Ugra Narain Singh v. Basan Narain Singh 19 Ind. Cas. 630 : 18 C.L.J. 209 : 17 C.W.N. 868, Prasannd Kumari Debi v. Sri Chandra Majumdar 33 Ind. Cas. 344 : 22 C.L.J. 561; Ramphal Rai v. Ram Baran Rai 5 A. 53 : A.W.N. (1882) 151; Muttia v. Virammal 10 M. 283 (F.B.); Venkatachala Reddi v. Venkatarama Reddi 24 M. 665; Appa Rao v. Krishna Ayyangar 25 M. 537; Sheikh Budan v. Ramchandra Bhunjgaya 11 B. 537; Jai Gobind Tiwari v. Patesri Partap Narain Singh A.W.N. (1907) 286 : 4 A.L.J. 765; Chhoti Narain Singh v. Musammat Rameswar Koer 6 C.W.N. 796; some of which were reviewed by this Court in Rama Prasad Roy Chowdhury v Anukal Chandra Roy Chowdhury 27 Ind. Cas. 444 : 20 C.L.J. 512. The doctrine itself is not disputed before us, but its applicability to the circumstances of this case is denied by the appellant. The argument in substance is that the lunatic was not at all represented before the Court at the trial of the suit, and the Court was consequently not competent to pass a decree to his detriment. This position is supported by a reference to three decisions of the Judicial Committee Khiarajmal v. Daim 32 I.A. 23 (P.C) : 32 C. 296 at pp. 313 315 : 1 C.L.J. 584 : 2 A.L.J. 71 : 9 C.W.N. 201 : 7 Bom. L.R. 1 : 8 Sar. P.C.J. 734; Rashid-un-nisa v. Muhammad Ismail Khan 3 Ind. Cas. 861 : 36 I.A. 168 : 31 A. 572 : 13 C.W.N. 1182 (P.C.) : 10 C.L.J. 318 : 6 A.L.J. 822 : 11 Bom. L.R. 1225 : 6 M.L.T. 279 and Radha Prasad Singh v. Lal Sahib Rai 17 I.A. 150 : 13 A. 53 : 5 Sar. P.C.J. 600 which show that a Court is not competent to make an operative decree against a person, not a party to the suit or properly represented on the record; but still the question remains, whether an objection on this ground can be raised in proceedings in execution of such a decree We are of opinion that the answer should be in the negative. The point is really concluded by the decision of the Judicial Committee in Rashid-un-nisa v. Muhammad Ismail Khan 3 Ind. Cas. 861 : 36 I.A. 168 : 31 A. 572 : 13 C.W.N. 1182 (P.C.) : 10 C.L.J. 318 : 6 A.L.J. 822 : 11 Bom. L.R. 1225 : 6 M.L.T. 279. There, the plaintiff sued for a declaration that the two decrees and three sales in execution of decrees were invalid so far as concerned her share m her paternal estate, which purported to be bound thereby. The two decrees were alleged to be not binding upon her, because, amongst other reasons, her sister, a married woman, had, in suits in which these decrees were made, been improperly appointed her guardian ad litem. The defendants asserted the validity of the decrees and sales in execution and pleaded, inter alia, that the suit was barred by the provisions of Section 244 of the Code of Civil Procedure of 1882. The Subordinate Judge held that the suit was not barred and decreed it on the merits. The High Court (Stanley, C.J., and Burkit, J.) held cm appeal that the suit was barred under Section 244. They observed that the decrees, whereon the execution proceedings were founded, were not and could not be impeached in the suit; the impeached transactions were proceedings of those decrees in execution and the proper course for the plaintiff was to raise these objections under Section 244 and not by a separate suit, as the question arose between the parties to the suit in which the decree was passed or their representatives and related to the execution of the decree.' The Judicial Committee, on appeal, reversed the decision of the High Court and restore:) that of the Primary Court. Sir Andrew Scoble, who delivered the judgment of their Lordships, observed: Section 244 of the Civil Procedure Code applies to questions arising between parties to the suit in which the decree was passed, that is to say, between parties who have been properly made parties in accordance with tins provisions of the Code. Their Lordships agree with the Subordinate Judge that the appellant was never a party to any of these suits in the proper sense of the term. Her sister was a married woman, and, therefore, was disqualified under Section 457 of the Code from being appointed guardian for the suit.' That a question of this character cannot be determined in execution, follows from two other decisions of the Judicial Committee Radha Prasad Singh v. Lal Sahib Rai 17 I.A. 150 : 13 A. 53 : 5 Sar. P.C.J. 600 and Khiarajmal v. Daim 32 I.A. 23 (P.C) : 32 C. 296 at pp. 313 315 : 1 C.L.J. 584 : 2 A.L.J. 71 : 9 C.W.N. 201 : 7 Bom. L.R. 1 : 8 Sar. P.C.J. 734 where relief was granted in regular suits on the ground that the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record. Lord Watson observed in the first case that an operative decree, obtained after the death of a defendant, by which the extent and quality of his liability are for the first time ascertained, cannot bind the representatives of the deceased, unless they were made parties to the suit in which it was pronounced. Lord Davey observed in the second case that as against persons who were not parties to the proceedings or properly represented on the record, the decrees and sales purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside, These two cases were argued by Counsel, who had an intimate knowledge of Indian Codes, before eminent Judges, who possessed an extensive acquaintance with our system of procedure (Sir Barnes Peacock, Sir Richard Couch and Sir Arthur Wilson). If the contention, of the appellant is well founded, it is singular that it did not strike anybody that the suits were barred under Section 244 as the question in controversy could and should have been raised in execution proceedings. It is worthy of note that in Pasumarti Payidanna v. Qanti Lahshminarasamma 20 Ind. Cas. 314 : 28 M.L.J. 525 : 38 M. 1076 when an objection of this character was raised in execution proceedings, the application was converted into a plaint under the provisions of Section 47 (2) of the Civil Procedure Code and this course was approved by the High Court. Our attention, however, has been drawn to the decision in Subramania Aiyar M. v. Vaithinatha Aiyar 31 Ind. Cas. 198 : 38 M. 682 where objection was allowed to be taken in execution proceedings that the decree under execution was passed after the death of the defendant and before his legal representatives were impleaded. Reliance was placed upon the decisions in Janardhan Krishna Padhye v. Ramchandra Vithal Ranade 26 B. 317 : 4 Bom. L.R. 23; Radha Prasad Singh v. Lal Sahib Rai 17 I.A. 150 : 13 A. 53 : 5 Sar. P.C.J. 600 and Imdad Ali v. Jagan Lal 17 A. 478 : A.W.N. (1895) 109. In the first case objection was taken, not in execution of the decree, but by way of application to the Court which had passed it. In the second ease, the objection was taken, not in execution), but by way of a regular suit. In the third case, the objection was sustained, though taken in execution, but this view is clearly opposed to the decision of the Judicial Committee in Rashid-un-nisa v. Muhammad Ismail Khan 3 Ind. Cas. 861 : 36 I.A. 168 : 31 A. 572 : 13 C.W.N. 1182 (P.C.) : 10 C.L.J. 318 : 6 A.L.J. 822 : 11 Bom. L.R. 1225 : 6 M.L.T. 279. On the other hand, we find that in Gomatham Alamelu v. Komandar Krishnamacharlu 27 M. 118 under somewhat similar circumstances, the judgment-debtor was not allowed to object to the validity of the decree in the course of its execution. The position is obviously different where, as in Arjim Das v. Gunendra Nath Basu Mallik 27 Ind. Cas. 294 : 20 C.L.J. 341 : 18 C.W.N. 1266 objection is taken to the execution proceedings on the ground of the death of the judgment-debtor, not before but after decree. We also find that in Amichand Talakchand v. Collector of Sholapur 13 B. 234 the question was raised by way of an application to the High Court to set aside a decree, so improperly made, in the exercise of its ordinary jurisdiction. The substance of the matter is that a proceeding to enforce a judgment is collateral to the judgment, and, therefore, no enquiry into its regularity or validity can be permitted in such a proceeding. On this principle, it can properly be held that a judgment against a person who was non compos mentis at the time of the trial, and yet was not represented by a legal guardian, is not to be impeached in execution but should be reversed or annulled in some direct proceeding taken for that purpose. Such a judgment can be attacked, for instance, by way of an application for review to the Court which made it, by way of an appeal or application for revision to a superior Tribunal or by way of a regular suit in a Court of competent jurisdiction, but the Court which made the decree cannot, when called upon to execute it, be invited to hold that the decree was erroneously or improperly made. The case before us is covered completely by the decision of the Judicial Committee in Rashid-un-nisa v. Muhammad Ismail Khan 3 Ind. Cas. 861 : 36 I.A. 168 : 31 A. 572 : 13 C.W.N. 1182 (P.C.) : 10 C.L.J. 318 : 6 A.L.J. 822 : 11 Bom. L.R. 1225 : 6 M.L.T. 279. There the lunatic was never a party to the suit in the proper sense of the term; his wife, though appointed the manager of his estate under Act XXXV of 1858, was herself a minor, and was thus disqualified to act as his next friend in the suit. The lunatic was, in the words of Sir Andrew Scoble, never a party to the suit in the proper sense of the term and, consequently, the question now raised is not a question which arises between the parties to the suit in which the decree was passed, that is to say, between parties who have been properly made parties in accordance with the provisions of the Code. The appellant has contended that this view is likely to lead to lamentable results, that if the decree is allowed to be executed, the purchaser will acquire no title, and that much mischievous litigation will, as a consequence, follow. We appreciate the force of this contention. At the same time, there is no answer to the argument of the respondent that if the decree is directly challenged, as it should be in an appropriate proceeding, the Court will, no doubt, remodel the decree in accordance with Order XXXII, Rule 2, read with Rule 15 Geereeballa Dabee v. Chunder Kant Mooherjee 11 C. 213; Devkabai v. Jefferson Bhaishankar and Dinsha 10 B. 248 and thus safeguard his just rights, while if the objection to execution prevails, he will be left without a remedy. We are of opinion that the safest course to follow is to adhere rigidly to the established principle that every order and judgment, however erroneous, is in the words of Lord Cottenham in Chuck v. Cremer 2 Phil. 113 at p. 115 : 16 L.J. Ch. 92 : 1 Coop. C.C. 388 at p. 342 : 41 E.R. 884 : 78 R.R. 45 good, until discharged or declared inoperative, and that the execution Court cannot enquire into the validity or propriety of the decree.. This, no doubt, assumes that there is a valid decree in existence, that is, an adjudication by a Court of Justice, a-decree or order which has not ceased to be operative and is capable of execution.

5. The result is that the order of the Subordinate Judge is affirmed and this appeal dismissed with costs. We assess the hearing fee at two gold mohurs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //